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District Judge Amul R. Thapar was the nation’s first South Asian-American Article
III judge and a surprise finalist for the U.S. Supreme Court.

He might one day blaze a trail as the first high court justice of South Asian descent,
which could give conservatives a solid majority on the court for a generation or longer.
Three of the court’s justices are
older than age 78, raising the prospect of another vacancy during Donald Trump’s presidency.

It’s “quite possible” that Trump will nominate Thapar to the U.S. Court of Appeals
for the Sixth Circuit en route to the Supreme Court,
Brian T. Fitzpatrick, a professor at Vanderbilt Law School, Nashville, told Bloomberg BNA by telephone
Feb. 7.

The judge focuses on the “big picture”
in legal controversies, much like the late Justice Antonin Scalia and Justice Clarence
Thomas, Fitzpatrick—who teaches about federal courts—said.

Thapar, of the U.S. District Court for the Eastern District of Kentucky, was one of
four potential nominees that Trump
personally interviewed before
nominating Tenth Circuit Judge Neil M. Gorsuch. Thapar was on Trump’s list of 21 judges he pledged
to choose from, but Thapar wasn’t mentioned on leaked
lists of finalists.

The judge “is a friend of” the conservative “
Federalist Society and they of course had a lot of influence over Trump’s
list” of potential nominees, Fitzpatrick said.

“He was very much a contender, which is impressive given that he’s a district court
judge,” he said.

Meta Mindset

Thapar takes an academic approach to judging that focuses on “meta questions,” Fitzpatrick
said. He’s “very well regarded as a big thinker.”

That helps explain Thapar’s inclusion on Trump’s list of potential nominees, he said.

If “you’re one of these few judges that loves thinking about and talking about these
meta questions, I think you get noticed by the powers that be very quickly.”

The judge has “
taught here at Vanderbilt on several occasions” and “hired a number of our former students
as his law clerks,” Fitzpatrick said. “I consider him a friend of mine as well as
a friend of Vanderbilt,” he said.

As an “academic judge,” Thapar is “thinking about the big picture, the thorny questions
of judicial philosophy”
when analyzing a case.

The judge “loves to be engaged”
in questions such as whether to apply legislative history to a dispute, the professor
said.

Thapar still applies case precedent as “lower court judges have to”
do, “but he’s also trying to think about what is the right philosophical meta answer
for how we should be doing law in this country.”

Scalia, Thomas-like

“Thomas is also thinking about meta questions”
as part of his judicial philosophy and “Scalia of course was well-known for being
a professor and thinking of” such questions.

The judge’s philosophy isn’t identical to either justice, “but he’s somewhere in their
zone of philosophy.”

Philosophy and Scalia were the subject of a
short course Thapar taught just last month, “Philosophy in Theory and Practice: Justice Scalia
and His Critics,” at the University of Virginia law school in Charlottesville, Va.

SCOTUS Potential

Trump will likely face
pressure to nominate a diverse candidate if there’s another Supreme Court vacancy during his
term.

Thapar would be the first South Asian-American on the court.

Further, if Trump can fill a Sixth Circuit vacancy with Thapar, the judge will “be
in an even better position next time there’s an opening on the Supreme Court,” he
said. Thapar has sat by designation on the Sixth Circuit many times.

It doesn’t hurt that Thapar already has a glowing reference from fellow Kentuckian
and Senate Majority Leader Mitch McConnell (R-Ky.).

McConnell praised Thapar as “one of the most respected U.S. Attorneys in the country”
at his 2007
confirmation hearing, and highlighted his prosecution of prescription narcotics abuse.

Thapar also served his community by founding a chapter “of the well-respected Street
Law program, which sends law school students into underprivileged high schools to
teach the basic underpinnings of our legal system,” McConnell said.

That decision granted a preliminary injunction against a rule prohibiting judicial
candidates from campaigning as members of political parties.

Thapar said the state forgot Thomas Jefferson’s warning that “a democracy cannot be
both ignorant and free.”

The judge gave another history lesson in a decision finding that a bankruptcy court
shouldn’t have abstained from hearing a breach of fiduciary duty claim, in
Sergent v. McKinstry, 472 B.R. 387 (E.D. Ky. 2012).

“Location matters,” Thapar wrote. “When King Leonidas and the Greeks chose to make
their stand at Thermopylae, the narrow mountain pass” neutralized “the Persians’
strong cavalry and enabled the Greek force to inflict massive casualties on a Persian
army more than twenty times its size.”

Thapar denied the retail giant’s request. “Let’s return to first principles,” he said.

Allowing discovery to establish the amount in controversy in the removal context would
be “inconsistent with the limited nature of federal jurisdiction and the need to respect
the authority of state courts.”

Removal halts state court “litigation in its tracks,” and allowing discovery here
could unnecessarily pause such litigation for months or longer, Thapar said.

“Shooting first and asking questions later may have been acceptable at the O.K. Corral,
but preserving the line between state and federal jurisdiction demands a good deal
more.”

To contact the reporter on this story: Patrick L. Gregory in Washington at
pgregory@bna.com

To contact the editor responsible for this story:
Jessie Kokrda Kamens at
jkamens@bna.com

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